National / Crime & Legal

Constitutionality of rules on surnames, remarriage under review

Kyodo

The Supreme Court’s Grand Bench will examine two cases questioning whether Civil Code articles forcing married couples to choose a single surname and prohibiting only women from remarrying for six months violate the Constitution.

It will be the first time for the Supreme Court to rule on the constitutionality of such matters. The top court convenes its 15-member Grand Bench when it judges whether a law is constitutional or changes a legal precedent.

On both of the damages lawsuits under review, district and high courts have judged that the Civil Code provisions do not infringe on the Constitution and ruled in favor of the government.

In May 2013, the Tokyo District Court rejected a suit filed by five people seeking a total of ¥6 million in damages. The plaintiffs argued that the Civil Code article on the use of single surnames violates the Constitution, which stipulates equality for all and ensures the dignity of individuals.

The district court acknowledged that a person’s name symbolizes his or her character and is part of a personal right, but the Constitution does not guarantee the right to use separate surnames.

The five — a common-law couple and three women who continue to use their maiden names after marriage — were contesting the constitutionality of Article 750 of the Civil Code, which says a husband and wife shall adopt the surname of the husband or wife in accordance with whatever is decided at the time of marriage.

The Tokyo High Court later upheld the district court’s decision.

The other case involves a woman from Okayama Prefecture seeking ¥1.65 million in damages from the government because the clause on remarriage violates the constitutional provision on equality.

Article 733 of the Civil Code sets a six-month period for women not to remarry.

In October 2012, the Okayama District Court rejected her suit, ruling the provision on remarriage is designed to avoid confusion over paternity. The Okayama High Court endorsed that ruling.

The latest Supreme Court decision comes amid mounting calls that Civil Code provisions on families are out of date and discriminatory against women.

Over the past several years, the top court has shown a willingness to weigh in on long-standing issues involving families. For example, in a landmark ruling in 2014, the Supreme Court declared unconstitutional the Civil Code clause that denied full inheritance rights to heirs born out of wedlock.

Nowadays, more women keep their jobs after giving birth and therefore keep using their maiden name at work. This has often resulted in confusion, as their legal name is different from their professional name.

Many experts also point out that it is groundless to place the six-month ban on remarrying only on women.

Japan has long faced pressure from the international community to modernize its family laws, especially since it ratified the Convention on the Elimination of All Forms of Discrimination Against Women in 1985.

In response, the Justice Ministry’s Legislative Council recommended in 1996 introducing a system that would allow women to choose between keeping their maiden name and adopting their husband’s name. But conservative lawmakers have opposed the change, saying doing so would “destroy traditional family values.”

The government has also defied repeated requests from the U.N. Committee on the Elimination of Discrimination against Women to eliminate Civil Code clauses that discriminate against women.

Last November, Justice Minister Yoko Kamikawa expressed a hesitation toward allowing married couples to keep separate surnames.

“Public opinion is sharply divided. What’s most important is to wait until the time is ripe,” she said.